Defamation: CDA Cases
From Internet Law Treatise
Section 230 of Title 47 of the United States Code (47 U.S.C. § 230 (http://www.law.cornell.edu/uscode/47/230.html)) was passed as part of the much-maligned Communication Decency Act of 1996. Many aspects of the CDA were unconstitutional restrictions of freedom of speech, but this section survived and has been a valuable defense for Internet intermediaries ever since. "By its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service”. Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998).
EFF maintains an archive of CDA cases: http://www.eff.org/legal/ISP_liability/CDA230/
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Upheld in Variety of Factual Contexts
Courts across the country have upheld Section 230 immunity and its policy of regulatory forbearance in a variety of factual contexts.
- Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (website operator immune for distributing email sent to listserv)
- Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) (Internet dating service provider was entitled to Section 230 immunity from liability stemming from third party’s submission of false profile);
- Gentry v. eBay, Inc., 99 Cal.App.4th 816 (2002) (eBay is entitled to immunity);
- Kathleen R. v. City of Livermore, 87 Cal.App.4th 684 (2001) (library not liable for providing access);
- Universal Communications Systems, Inc. v. Lycos, Inc., 2007 WL 549111 (1st Cir. 2007) (message board not liable for users' messages);
- Schneider v. Amazon.com, Inc., 31 P.3d 37, 39 (Wash.Ct.App. 2001) (online bookseller providing forum for others to submit book reviews is “interactive computer service” provider (“ICS provider”));
- Doe v. America Online, 783 So.2d 1010, 1013-1017 (Fl. 2001), cert. denied, 122 S.Ct. 208 (2000) (§ 230 immunizes America Online (“AOL”) for negligence);
- Ben Ezra, Weinstein & Co. v. America Online, 206 F.3d 980, 984-985 (10th Cir. 2000), cert. denied, 531 U.S. 824 (2000) (no liability for posting of incorrect stock information);
- Marczeski v. Law, 122 F.Supp.2d 315, 327 (D. Conn. 2000) (individual who created private “chat room” was ICS provider entitled to immunity);
- Blumenthal v. Drudge, 992 F. Supp. 44, 49-53 (D.D.C. 1998) (AOL has Section 230 immunity from liability for content of independent contractor’s news reports, despite agreement with contractor allowing AOL to modify or remove such content).
Causes of Action Covered
Courts have routinely held that the immunity conferred by Section 230 is available for myriad causes of action.
State Causes of Action
Section 230 is not limited to defamation actions. It extends to claims of negligence. Doe v. America Online, 783 So.2d at 1013-1017; Schneider, 31 P.3d at 41-42 (negligent misrepresentation and interference with business expectancy). It extends to state causes of action for violating a statute that forbids dealers in autographed sports items from misrepresenting those items as authentically autographed. Gentry, 99 Cal.App.4th at 828-833 (§ 230 immunity protects against liability under Civil Code § 1739.7). It extends to unfair competition laws. Stoner v. eBay, Inc., 2000 WL 1705637, (Cal.Super.2000) (unpublished) (claiming eBay violated Calif. Bus. & Prof. Code § 17200 for auctions of bootleg and other unauthorized ‘infringing’ sound recordings); Perfect 10, Inc. v. CCBill, LLC,340 F.Supp.2d 1077 (C.D.Cal.2004) (applying § 230 to claim of unfair competition based on state law). It protects a library from being held liable for misuse of public funds, nuisance, and premises liability for providing computers allowing access to pornography. Kathleen R., 87 Cal.App.4th at 692. It extends to contract claims. Morrison v. America Online, Inc., 153 F.Supp.2d 930, 934 (N.D. Ind. 2001) (rejecting attempt to evade § 230 immunity by claiming to be third-party beneficiary of AOL’s member agreement with chat-room users); Jane Doe One v. Oliver, 755 A.2d 1000, 1003-1004 (Conn. Super. Ct. 2000) (applying § 230 to dismiss breach of contract action against AOL, as well claims such as negligence, breaching a mandated public policy, intentional nuisance, and emotional distress); Novak v. Overture Services, Inc., 309 F.Supp.2d 446 (E.D.N.Y.2004) (applying § 230 to claim of tortious interference with prospective economic advantage); Beyond Systems, Inc. v. Keynetics, Inc., 422 F.Supp.2d 523 (D.Md. 2006) (state anti-spam law); Doe v. MySpace, No. 1:06-cv-00983-SS (W.D. Tex 2007) (negligence and gross negligence). It also extends to breaches of state securities laws and cyberstalking, Universal Communications Systems, Inc. v. Lycos, Inc., 2007 WL 549111 (1st Cir. 2007).
Criminal Laws
Section 230 also protects against state criminal laws and civil claims based on federal criminal statutes. Voicenet Communications, Inc. v. Corbett, 2006 WL 2506318 (E.D. Pa. 2006) (finding the "CDA confers a § 1983-enforceable right upon internet service providers and users to not be 'treated' under state criminal laws as the publisher or speaker of information provided by someone else..."); Doe v. Bates, 2006 WL 3813758 (E.D. Tex. Dec. 27, 2006) (230 preempts civil claims predicated on federal criminal statutes).
Federal Causes of Action
Section 230 has been held to immunize ISPs from federal causes of action. See Noah v. AOL Time Warner, Inc., 261 F.Supp.2d 532 (E.D.Va. 2003), aff'd by unpublished per curiam opinion 2004 WL 602711 (4th Cir. 2004) (AOL immune from federal civil rights claim that treated it as a publisher); see also Associated Bank-Corp. v. Earthlink, Inc., 2005 WL 2240952 (W.D.Wis. 2005) (230 protected against claim under Lanham Act, 1125(a)); see also Chicago Lawyers’ Comm. for Civil Rights Under the Law, Inc., v. Craigslist, Inc., 461 F.Supp.2d 681 (N.D. Ill. 2006) (Section 230 immunizes craigslist against Fair Housing Act claims).
In Fair Housing v. Roommates.com, __ F.3d __ (9th Cir. 2007), [2007 U.S. App. LEXIS 11350, 2007 WL 1412650] however, the 9th Circuit held that the housing locater site was not immune under Section 230. Roommates.com was not a passive publisher of the content; rather, the site had developed questionnaires to elicit potentially discriminatory information from users. The court found that its search mechanism and e-mail notifications meant that it was neither a passive pass-through of information provided by others nor merely a facilitator of expression. "By categorizing, channeling and limiting the distribution of users' profiles, Roommate provides an additional layer of information that it is 'responsible' at least 'in part' for creating or developing." Id. at 17. The site is therefore an information content provider and is not immune under the publisher provisions of the CDA. The court remanded the case to determine whether the site violated the FHA.
In concurrence, Judge Ikuta disagreed with the majority's narrow interpretation of a content provider, writing, "Unless a website operator directly provides 'the essential published content,' Carafano, 339 F.3d at 1124, it is not an 'information content provider.'" Id. at 26.
The court did hold, however, that Roommates.com was immune in regard to open-ended questions that suggested no particular information to be provided by members. The court stated, "Roommate certainly does not prompt, encourage or solicit any of the inflammatory information provided by some of its members. Nor does Roommate use the information in the 'Additional Comments' section to limit or channel access to listings. Roommate is therefore not 'responsible, in whole or in part, for the creation or development of' its users' answers to the open-ended 'Additional Comments' form, and is immune from liability for publishing these responses." Id. at 20. Judge Reinhardt argued in dissent that no immunity should attach at all because the user profiles had to be conceived as a whole, over which Roommates.com was exercising editorial control. Therefore no part of the site deserved immunity.
Section 230 and Intellectual Property
"Nothing in [Section 230] shall be construed to limit or expand any law pertaining to intellectual property." Section 230(e)(2). No legislative history exists regarding subsection (e)(2).
This provision has led courts to hold that Section 230 immunity is not available for federal intellectual property claims. See Gucci Am., Inc. v. Hall & Assocs., 135 F.Supp.2d 409, 413 (S.D.N.Y.2001) (holding that to immunize defendant from trademark claims would limit laws pertaining to intellectual property); Ford Motor Co. v. GreatDomains.com, Inc., No. 00-CV-71544-DT, 2001 WL 1176319, at *1 (E.D.Mich. Sept.25, 2001) (holding that if defendant violated federal trademark laws Section 230 would not provide immunity); Parker v. Google, Inc., 422 F.Supp.2d 492, 502 n.8 (E.D.Pa. 2006) ("Google argues that it is immune from Lanham Act claims because of its § 230 immunity under the CDA. We agree with those courts that have rejected this argument based on § 230(c)(2)'s exception for intellectual property laws."); cf. Associated Bank-Corp. v. Earthlink, Inc., 2005 WL 2240952 (W.D.Wis. Sep 13 2005) (dismissing Lanham Act claim ("15 U.S.C. § 1125(a), Injury to Business Reputation") under Section 230).
In Perfect 10, Inc. v. CCBill, LLC, 340 F.Supp.2d 1077 (C.D.Cal. 2004), the District Court initially found that a state law right of publicity was an intellectual property right, and therefore not covered by Section 230. However, the Ninth Circuit reversed, "constru[ing] the term 'intellectual property' to mean 'federal intellectual property.'" Perfect 10, Inc. v. CCBill, LLC, 481 F.3d 751 (9th Cir. 2007), The Ninth Circuit reasoned that "Because material on a website may be viewed across the Internet, and thus in more than one state at a time, permitting the reach of any particular state’s definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress’s expressed goal of insulating the development of the Internet from the various state-law regimes." In an earlier decision, Carafano v. Metrosplash.Com, Inc., 339 F.3d 1119, 1125 (9th Cir.2003), the Ninth Circuit dismissed a right of publicity claim pursuant to Section 230, but without any discussion. Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006) declined to rule on whether 230 preempts right of publicity rights claim, but engaged in extensive discussion.
Scope of Interactive Computer Service
Courts have almost unanimously held that, while the phrase “provider . . . of interactive computer services” may seem to refer only to the activities of traditional ISPs, the broad language and policy rationale behind Section 230 require that entities as different as an online matchmaking service, a copy shop, an online bookseller, an online auction service, a public library, and an Internet user who created a chat room all receive immunity from civil liability. Accordingly, courts have interpreted Section 230 protection to be “quite robust, adopting a relatively expansive definition of ‘interactive computer service[.]’” Carafano v. Metrosplash.com, Inc., 339 F. 3d 1119, 1123 (9th Cir. 2003); see also Parker v. Google, 422 F. Supp. 2d 492, 501 n.6 (E.D. Pa. 2006) (same); Associated Bank-Corp. v. Earthlink, Inc., No. 05-C-0233-S, 2005 WL 2240952, at *3 (W.D.Wis. Sept. 13, 2005) (quoting Carafano, 339 F.3d at 1123).
- Carafano, 339 F.3d 1119 (online matchmaking service is an ICS);
- PatentWizard, Inc. v. Kinko’s, Inc., 163 F.Supp.2d 1069, 1071 (D.S.D. 2001) (photocopy shop not contested as ICS provider under § 230);
- Schneider v. Amazon.com, Inc., 31 P.3d 37, 39 (Wash.Ct.App. 2001) (online bookseller providing forum for others to submit book reviews is “interactive computer service” provider); Corbis v. Amazon.com, 351 F. Supp. 2d 1090, 1118 (W.D. Wash. 2004) (same);
- Gentry, 99 Cal.App.4th at 931 n.7 (eBay an ICS);
- Kathleen R., 87 Cal.App.4th at 692-693 (public library protected by § 230);
- Marczeski v. Law, 122 F.Supp.2d 315, 327 (D. Conn. 2000) (organizer of chat room for discussion of dispute about plaintiff held to be ICS provider);
- Batzel, 333 F.3d at 1031 (website and listserv operator held to be ICS provider and user);
- Smith v. Intercosmos Media Group, Inc., 2002 WL 31844907 (E.D. La. 2002) (domain name registrar is an ICS provider).
- Parker v. Google, Inc., 2006 WL 680916 (E.D.Pa. 2006) (Search enging Google immune for archiving of, caching of, or providing access to allegedly defamatory, unauthorized, or threatening usenet postings)
- DiMeo v. Max, full text of opinion (http://www.paed.uscourts.gov/documents/opinions/06D0657P.pdf), 433 F. Supp. 2d 523 (E.D. Pa. May 26, 2006) (online message board is covered by 230 despite editorial review by message board operator)
- Prickett v. infoUSA, Inc., 2006 WL 887431 (E.D. Tex. Mar. 30, 2006) (database publisher retains 230 immunity for content furnished to it by third parties even if the database publisher later licenses the database content to third parties)
- D’Alonzo v. Truscello, No. 0274, 2006 Phila. Ct. Comm. Pl. LEXIS 244 (Phila. Ct. Comm. Pl. May 31, 2006) (website)
- Delfino v. Agilent Technologies, Inc., 52 Cal.Rptr.3d 376, 145 Cal.App.4th 790 (Cal. App. Ct. 2006) (employers internet access)
Application to Users of Interactive Computer Services
Section 230 expressly grants providers and users the same immunity on the same terms. 47 U.S.C. § 230(c)(1) (“[n]o provider or user . . . .”); see also Barrett v. Rosenthal, 40 Cal.4th 33, 146 P.3d 510 (Cal. 2006) (“By declaring that no ‘user’ may be treated as a ‘publisher’ of third party content, Congress has comprehensively immunized republication by individual Internet users.”); Batzel v. Smith, 333 F.3d 1018, 1030 (9th Cir. 2003), cert. denied, 124 S.Ct. 2812 (2004) (the “language of § 230(c)(1) confers immunity not just on ‘providers’ of such services, but also on ‘users’ of such services.”); Optinrealbig.com, LLC v. Ironport Systems, Inc., 323 F.Supp.2d 1037 (N.D.Cal. 2004) (defendant protected where it “uses interactive computer services to distribute its on-line mailing and to post the reports on its website”); Barrett v. Fonorow, 799 N.E.2d 916, 923-24 (Ill. App. 2003) (poster of Bolen’s messages was ICS “provider or user”). . This parity of treatment is also reflected in the statute’s second immunity provision, subsection 230(c)(2), which uses the same phrasing of “[n]o provider or user. . . .” Cf. Novartis Vaccines and Diagnostics, Inc v. Stop Huntingdon Cruelty USA, Inc. 143 Cal.App.4th 1284, 1301 (Cal. App. 2006) (in a decision prior to the California Supreme Court in Barrett, limiting 230 to interactive computer service providers without discussing or addressing statutory language).
Court have generally found that website operators are both providers and users of interactive computers services. As one court opined, for a “Web site to exist, it must access the Internet through some form of interactive computer service; otherwise, the public could not view it. Thus, [the defendant's] Web site is also the ‘user’ of an interactive computer service.” DiMeo v. Max, 433 F.Supp.2d at 529-530 (E.D.Pa. 2006); see also Donato v. Moldow, 374 N.J.Super. at 488 (finding website operator both provider and user); Batzel at 1031 (finding no need to determine if website and listserv was user or provider, since it was clearly one or the two).
Exercise of Editorial Functions
Section 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions. As the Fourth Circuit noted:
[L]awsuits seeking to hold a service liable for its exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content – are barred. The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. . . . Section 230 was enacted, in part, to maintain the robust nature of Internet communication[.]
Zeran v. America Online, 129 F.3d 327, 330-31 (4th Cir. 1997) (in enacting § 230, Congress sought "to encourage service providers to self-regulate the dissemination of offensive material over their services" and to remove disincentives to self-regulation); see also Blumenthal v. Drudge, 922 F. Supp. 44, 52 (D.D.C. 1998) (§ 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self- regulatory functions); 141 Cong. Rec. H8460-01, H8470 (1995) (statement of Rep. Barton) (Congress enacted § 230 to give interactive service providers "a reasonable way to . . . help them self-regulate themselves without penalty of law").
As noted by the Ninth Circuit, a central purpose of Congress in enacting Section 230 “was to protect from liability service providers and users who take some affirmative steps to edit the material….” Batzel, 333 F.3d at 1031. Accordingly, Section 230 “precludes liability for exercising the usual prerogative of publishers … to edit the material published….” Id. "The exclusion of 'publisher' liability necessarily precludes liability for exercising the usual prerogative of publishers to choose among proffered material and to edit the material published while retaining its basic form and message." Id.
Numerous courts have agreed. See Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124 (9th Cir. 2003) ("So long as a third party willingly provides the essential published content, the interactive service provider receives full immunity [under Section 230] regardless of the specific editing or selection process."); Ben Ezra, 206 F.3d at 985-986 (deleting of information did not transform ICS provider into “information content provider”); Schneider, 31 P.3d at 39-43 (website not liable despite right to edit posted mater); Barnes v. Yahoo, 2005 WL 3005602 (D.Or. 2005) (Yahoo not liable despite alleged “failure to fulfil its promise to remove the" tortious material ); D'Alonzo v. Truscello, 2006 WL 176809, 2006 Phila. Ct. Com. Pl. LEXIS 244 (Phila. Ct. Common Pleas May 31, 2006) (not liable where ICS affirmatively gets content elsewhere);
Thus, minor alterations and categorizations do not remove the immunity. In Ramey v. Darkside Producs., Inc. 2004 U.S. Dist. LEXIS 10107, *19-20 (D.D.C. 2004) the Court followed Batzel and Carafano, and held that defendant's "minor alterations of that advertisement (printing its website address on every advertisement that it publishes on its website, placing a watermark on the photos used, and categorizing the advertisements by subject matter) do not constitute "creation or development" of the advertisement within the definition of "information content provider." To the contrary, "because Defendant did no more than select and make minor alterations to Crittenden's advertisement, it cannot, as a matter of law, be considered the content provider of the advertisement for purposes of § 230." Id., cf. MCW, Inc. v. badbusinessbureau.com, LLC, 2004 WL 833595 (N.D.Tex. 2004) (no immunity where allegation that defendant Rip-Off Report created "disparaging titles, headings, and editorial messages," and that editorial contributions contributed to and shaped content, holding that "actively encouraging and instructing a consumer to gather specific detailed information is an activity that goes substantially beyond the traditional publisher's editorial role."); Hy Cite Corp. v. badbusinessbureau.com, LLC, 418 F.Supp.2d 1142, 1148-49 (D.Ariz. 2005) (no immunity when plaintiff alleged "that wrongful content appears on the Rip-off Report website in editorial comments created by Defendants and titles to Rip-off Reports, which Defendants allegedly provide."); Whitney Information Network v. Xcentric Ventures, 2006 WL 2243041 (11th Cir. Aug 1, 2006) (bare declaration on non-authorship insufficient to get 230 defense on summary judgment).
Even providing the canvas upon which a third party places material is insufficient for liability. Gentry, 99 Cal.App.4th at 833-34 (eBay not liable despite highly structured Feedback Forum); see also Universal Communications 2007 WL 549111 (message board postings do not cease to be “information provided by another information content provider” merely because the “construct and operation” of the website might have some influence on the content of the postings); Carafano, 339 F.3d at 1124-25 (Internet dating service immune even though it “contributes much more structure and content than eBay by asking 62 detailed questions and providing a menu of ‘pre-prepared responses.’”); Prickett v. InfoUSA, Inc. 2006 WL 887431 (E.D.Tex. 2006) (immunity even though system prompts uses "to select subcategories ... The fact that some of the content was formulated in response to the Defendant's prompts does not alter the Defendant's status.")
While Section 230(f)(3)'s definition of an information content provider includes "any person ... that is responsible ... for the creation or development of information," the inclusion of "development" does not prohibit editorial activities. "Development requires material substantive contribution to the information that is ultimately published. Deleting profanity, selectively deleting or allowing to remain certain postings, and commenting favorably or unfavorably on some postings, without changing the substance of the message authored by another, does not constitute “development” within the meaning of § 230(f)(3)." Donato v. Moldow, 374 N.J.Super. 475, 865 A.2d 711, 727-728 (N.J.Super.A.D. 2005).
Editorial Control Not Required
While encourageing self-regulation, Section 230 “does not require [information content providers] to restrict speech; rather, it allows [them] to establish standards of decency without risking liability for doing so.” Green v. American Online, Inc., 318 F.3d 465, (3rd Cir. 2003); see also Blumenthal, 992 F. Supp. at 52 (“Congress has conferred immunity from tort liability as an incentive to Internet service providers to self-police the Internet for obscenity and other offensive material, even where the self-policing is unsuccessful or not even attempted.”); Barrett, 40 Cal 4th at 34 (Section 230’s protection ”applies even when self-regulation is unsuccessful, or completely unattempted”).
Minority Views
View that Distributor Liability is Not Covered
In Barrett v. Rosenthal, 40 Cal.4th 33, 146 P.3d 510 (Cal. 2006), the California Supreme Court reversed Barrett v. Rosenthal, 9 Cal.Rptr.3d 142, 2003 Cal. App. LEXIS 1551 (Cal. App. 2003), and rejected the view that Section 230 did not cover distributor liability.
The California Court of Appeal had explicitly disagreed with the Zeran line of federal cases, holding that the CDA’s immunity only applies to publisher, not distributor, liability for tortious statements. In Zeran, the Fourth Circuit had ruled that “distributors are considered to be publishers for purposes of defamation law,” noting that Congress “employ[ed] the legally significant term ‘publisher,’ which has traditionally encompassed distributors and original publishers alike.” Zeran, at 332-334; see also Perfect 10, Inc. v. CCBill, LLC, 340 F.Supp.2d 1077, 1111 (C.D.Cal.2004)("[E]ven if the Defendants are considered distributors rather than publishers, the CDA immunities would still apply...."); Blumenthal, 992 F.Supp. at 52 (in enacting Section 230, "Congress made no distinction between publishers and distributors in providing immunity from liability").
However, the California appeals court, in a case in which a user of an Internet discussion group repeatedly re-posted defamatory statements on a message board, had held that the distributor can be liable if he or she has reason to know of the messages’defamatory character, overruling Barrett v. Clark, 29 Media L. Rep. 2473 (Cal. Sup. Ct. 2001). In Grace v. eBay, Inc., 2004 WL 1632047 (Cal. App. 2004), another California court followed Barrett, holding no immunity against liability for a distributor of information who knew or had reason to know that the information was defamatory. Both Grace and Barrett were depublished pending the California Supreme Court decision, and are now superseded. See also Austin v. CrystalTech Web Hosting, 2005 WL 3489249 (Ariz. App. Div. 2005) (declining invitation to "reject the Zeran analysis and instead follow Barrett v. Rosenthal," and noting that "every [federal] appellate court to reach the issue has followed the Fourth Circuit's approach in Zeran.")
For academic views, see Susan Friewald, Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation, 14 Harv. J.L. & Tech 569 (2001) and David R. Sheridan, Zeran v. AOL and the Effect of Section 230 of the Communications Decency Act upon Liability for Defamation on the Internet, 61 Alb. L.Rev. 147 (1997).
View that Section 230 is an Affirmative Defense
Three courts have supported the minority view that Section 230 is an affirmative defense, and therefore defendants generally cannot dismiss claims under FRCP 12(b)(6). In Novak v. Overture Servs., Inc., 309 F.Supp.2d 446, 452 (E.D.N.Y. 2004, the court noted that “invocation of Section 230(c) immunity constitutes an affirmative defense[, a]s the parties are not required to plead around affirmative defenses, such an affirmative defense is generally not fodder for a Rule 12(b)(6) motion." Nevertheless, the court granted the defendant's motion to dismiss pursuant to Section 230. Likewise, in Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003), the Seventh Circuit wrote that “[a]ffirmative defenses do not justify dismissal under Rule 12(b)(6); litigants need not try to plead around defenses,” but also affirmed the District Court's grant of the motion to dismiss. Doctor's Associates, Inc. v. QIP Holders, LLC, 2007 WL 1186026 (D. Conn. 2007) became the first case to actually deny a motion to dismiss pursuant to the dicta Novak and GTE.
This view is not widely shared, and the majority of jurisdictions regularly grant FRCP 12(b)(6) motions to dismiss when it is clear that Section 230 barred the claims alleged in the plaintiff’s complaint. See e.g. Universal Communications Systems v. Lycos, Inc., 2005 WL 5250032, 2005 U.S. Dist. LEXIS 44778, at * 4 (D. Mass. 2005), aff’d, 478 F. 3d 413 (1st Cir. 2007); Green v. America Online, 318 F.3d 465, 472 (3d Cir. 2003); Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 534 (E.D. Va. 2003), aff’d, 2004 WL 602711, 2004 U.S. App. LEXIS 5495 (4th Cir. Mar. 24, 2004); Parker v. Google, Inc., 422 F.Supp.2d 492 (E.D.Penn. 2006); Morrison v. American Online, Inc., 153 F.Supp.2d 930 (N.D.Ind. 2001).
Key Cases
- Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997)
- Blumenthal v. Matt Drudge & America Online, Inc, 992 F. Supp. 44 (D.D.C. 1998)
- Ben Ezra, Weinstein, and Co. v. America Online, Inc., 27 Media L. Rep. 1794 (D.N.M. 1999), aff’d, 206 F.3d 980 (10th Cir. 2000)
- Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003)
Chapter 1 - Defamation
General
· Defamation In Cyberspace
· Judicial Decisions on CDA
· Selected Defenses
· International Defamation Decisions
